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Court: California Court of Appeals First Appellate District Division Three on appeal from the Superior Court, San Francisco County

Plaintiff's Attorney: Minh U. Le

Defendant's Attorney: Barbara A. Smith

Description: Steve Jameson sued pacific Gas and Electric Company (PG&E) for wrongful
termination and breach of the covenant of good faith and fair dealing. He alleged PG&E
fired him in violation of an implied-in-fact employment contract not to terminate his
employment without good cause. PG&E moved for summary judgment on the grounds
that Jameson was an at-will employee and, alternatively, that PG&E had good cause to
terminate him. The trial court granted PG&E summary judgment on the basis that
Jameson failed to demonstrate the existence of a triable issue of material fact as to the
existence of an implied employment contract. We affirm because, regardless of whether
Jameson was an at-will employee, PG&E established it had good cause to terminate him.
BACKGROUND
I. Paul Nelson Reports Retaliation
Jameson worked for PG&E for less than a year starting in 1977, then returned to
PG&E seven years later in 1985. Between 1986 and 2012 he rose in the ranks from
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apprentice welder to construction specialist/manager. In April 2012 he was promoted to
Regional Construction Manager.
In 2012 Paul Nelson, a PG&E employee who supervised hydrostatic testing of gas
transmission pipes, began testing pipes on construction sites Jameson managed in
PG&E’s Central Valley Region. In June 2013 Nelson reported a safety issue, an
unbarricaded pipe on one of Jameson’s testing sites, to Scott Powell, Nelson’s union shop
steward. Powell reported the concern to Nelson’s supervisors, Joel Mannie and Jerry
Rice. Mannie forwarded Powell’s email to Jameson and Jameson’s supervisor, Pierre
Bigras.
In August 2013 Nelson was removed from Jameson’s construction sites and
transferred to testing sites outside of the Central Valley Region. As a result, he
sometimes had to travel three or four hours to his work assignments. In November he
emailed Nick Stavropolous, an executive vice president in Gas Operations, to complain
that Jameson and third-party contractors Michael Solinsky and David Yancy had
retaliated against him for reporting the safety issue. Nelson wrote:
“Recently, I was placed in a situation where I needed to speak up. On a test earlier
this year, I noticed a section of the test that was under pressure that the contractor
neglected to barricade off from public access. I needed to make a decision of how to
respond. The local lead inspector was not responding to me and I decided to contact the
CM (Construction Specialist) responsible for this particular job. He also did not respond
until the following day. When he did, it was an intimidating message plain and simple;
‘stop asking questions, and look the other way!’ The safety violation was elevated to the
RCM, Steve Jameson, who called me and told me not to bring up the issues like this
anymore because it ‘causes problems.’ He told me he would take care of it, and ‘we
would all come out looking good.’ Later, Steve met with my supervisors and made it
clear he was building a case against me unless I be removed from his area. To protect me
against retaliation, my supervisor assigned me to another area across the system. The
CM and Lead Inspector who covered up this incident are being rewarded with all and any
work they want in the area. Is this the atmosphere we want coming out of San Bruno?”
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Terri Winnie, the human resources director for PG&E’s Gas Operations
Department, assigned Nelson’s complaint to human resources manager and former EEO
Investigator Collins Arengo and retained employment attorney Jennie Lee to conduct an
investigation. Lee, a former PG&E staff lawyer, specializes in workplace investigations
and regularly advises clients on employment issues including discipline, termination and
compliance with state, federal and workplace laws. She or other members of her law
firm had investigated approximately one hundred violations of PG&E’s code of conduct
since 2012.
II. Lee’s Report
Lee’s investigation commenced in late November 2013 and lasted two months.
She spent approximately 50 hours on the case and interviewed ten individuals including
Nelson, Jameson, Bigras, Mannie, Rice, Powell, and Norman Soares, a senior
construction manager who reported to Jameson.
In early December PG&E directed Jameson to call Lee “because of a harassment
complaint filed by Nelson.” Lee interviewed Jameson over the phone, her standard
practice for PG&E investigations, for approximately one hour. During the interview
Jameson outlined various complaints he said he and others, particularly third-party
contractors, had about Nelson, including that he was inexperienced, caused project delays
and “milked” overtime. Jameson denied there was any connection between Nelson’s
safety concerns and his own efforts to have Nelson removed from his construction sites.
He told Lee he had been complaining about Nelson’s performance for over a year before
the safety issue arose and encouraged her to speak with Mannie, Bigras, Rice, Soares and
PG&E safety coordinator Michael Bennett to corroborate this.
According to Lee’s report, Rice, Mannie and Soares denied that Jameson made
ongoing complaints about Nelson before the June 2013 incident. Nelson’s direct
supervisor, Rice, told her that if anyone including Jameson had problems with Nelson’s
performance, he would be aware of it. He knew of only one instance, when Nelson first
started as a field engineer in early 2012, when Jameson complained Nelson was
inexperienced. Other than that, Rice was unaware of any complaints about Nelson before
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Nelson reported the safety issue in June 2013. After that Jameson’s supervisor, Bigras,
asked Rice to look into an allegation that Nelson was delaying jobs for personal gain.
Rice did so and found nothing amiss.
Powell, the shop steward, similarly told Lee that Jameson complained about
Nelson’s work performance once in 2012, while Nelson was still training under Powell’s
supervision. But, like Rice, he received no further complaints before Nelson raised the
safety concern in June 2013. Mannie told Lee that prior to the safety issue “ ‘no one
complained to me about Paul’s work or accused Paul of delaying jobs.’ ” Soares told her
that Jameson once mentioned a problem with Nelson on one particular job, but other than
that he never heard Jameson complain about Nelson’s performance or accuse him of
delaying work. Soares also contradicted Jameson’s statement that he had complained to
Soares about Nelson “gaming the system to gain overtime.” Bigras told Lee he thought
Jameson had raised issues early in the season when Nelson was first starting as a field
engineer, but that he heard no subsequent complaints until the “ ‘situation came to a
head’ ” in 2013.
Jameson told Lee that other inspectors supported his belief that Nelson “was
delaying at least 20 jobs he was on,” but he did not provide their names and, according to
Lee’s findings, none of Nelson’s supervisors heard such complaints before June 2013.
Jameson admitted to Lee that after the safety incident he asked Nelson’s former
supervisor, Keith Lovgren, to share negative feedback about Nelson with Bigras. Bigras
confirmed that Lovgren called him with unsolicited “background” on Nelson, including
Lovgren’s view that Nelson “was a pathological liar who used the system for his own
benefit” and “sued people for no reason.” Jameson also asked Rice to contact Lovgren,
but Rice saw no reason to do so. Bigras suggested to Mannie that he speak with Lovgren,
but, like Rice, Mannie had no problems with Nelson and saw no need to speak with his
former supervisor. Lee found Jameson’s purported reason for reaching out to Lovgren—
“to see if he was missing something” about Nelson—was not credible. Rather, she
concluded the evidence supported a finding that Jameson investigated Nelson’s past to
influence Bigras’s decision to transfer him.
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Lee found the evidence suggested that Jameson misrepresented complaints about
Nelson having conflicts with contractors to get him transferred. Her report addressed a
July 16, 2013, meeting held between Rice, Jameson, contractors Yancy and Solinsky, and
Nelson “to resolve their issues.” Rice felt the contractors’ complaints about Nelson were
unwarranted because “[t]hey could not give me legitimate examples. It just sounded like
[Nelson] was doing his job” by following PG&E and CPUC safety protocols.
In August Jameson complained to Bigras that Nelson was not getting along with
the contractors. Bigras asked Rice and Mannie to have another meeting with Jameson
and the contractors. Rice, Mannie and Yancy had not heard of any problems for the past
month and thought the July 16 meeting had resolved things. But, according to Rice, at
this second meeting Jameson said he wanted Nelson out of his area. When Rice asked
why, Yancy said that Jameson told him Nelson had elevated more safety concerns. When
Rice told Yancy that this was not true, Jameson corrected Yancy that his complaint “was
not safety concerns but problems with Nelson delaying the tests.” Rice and Mannie told
Lee that they thought Jameson was prompting the contractors to say Nelson was delaying
tests, but the contractors “could not provide him any legitimate reason for their
complaints.”
Rice and Mannie told Lee that after this meeting Jameson asked to meet privately
with them and said “he was going to prove that Nelson was delaying jobs to ‘milk’
overtime.” Rice felt Jameson was “stirring the pot” and “feeding the contractor” with
issues. He told Lee there were no complaints about Nelson while Jameson was on
vacation. Nonetheless, after the second meeting Mannie and Rice agreed it would be best
to transfer Nelson away from Jameson “for his own protection.” Mannie told Lee, “[i]t
seemed personal. It felt like [Jameson] was going out of his way to try to build a case
against [Nelson].”
Based on her investigation, Lee concluded “the evidence reflects that Jameson
engaged in retaliatory conduct against Nelson. [¶] Despite the close proximity of the two
events, Jameson claimed that Nelson had ongoing performance issues, which Jameson
allegedly complained about to numerous witnesses. The witnesses identified by Jameson
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as individuals who would substantiate this claim, however, denied they heard ongoing
complaints about Nelson from Jameson prior to the safety incident. According to the
witnesses, Jameson complained about Nelson’s performance a year prior when Nelson
was a new field engineer in training. After that, Nelson successfully completed his
training. The witnesses stated that Nelson has worked for over a year on numerous
projects without any issues or complaints. Indeed, the witnesses denied that Nelson had
ongoing performance issues prior to raising the safety concern. Furthermore, the
witnesses contradict Jameson’s claim that Nelson delayed three-quarters of his projects.
The witnesses’ statements included that prior to the safety concern, ‘[Nelson] worked on
40 other jobs and had no problems.’ The witnesses said that if there were performance
issues as alleged by Jameson, they would have dealt with them. ‘[The performance
issues] wouldn’t have been ignored.’ Yet, according to the witnesses, the performance
issues as represented by Jameson did not happen. Moreover, the witnesses said that if
Nelson delayed the projects as Jameson claimed, they would have heard complaints from
others besides Jameson. They did not. . . . The witnesses also reviewed Nelson’s
overtime records to determine if they were out of line in comparison to other field
engineers. They found nothing out of the ordinary in terms of Nelson’s overtime.”
Lee’s report also recounted evidence that, despite his claim that Nelson’s delays
cost him $20,000, Jameson only asked contractors to start documenting them after the
June 2013 incident; that he encouraged Nelson’s former supervisors to investigate
Nelson’s background after the incident; and that he continued to complain about Nelson’s
purported ongoing problems with third party contractors after those problems were
resolved. Lee concluded: “It seemed to the witnesses that Jameson had misrepresented
these complaints to get rid of Nelson because of the safety incident. Based upon the
totality of the circumstances, I find that the evidence reflects Jameson complain[ed] about
Nelson to orchestrate his transfer in retaliation for raising safety concerns in June 2013,”
in violation of PG&E’s code of conduct. In all of the investigations Lee had done for
PG&E, this was the first time she found that a manager retaliated against an employee for
making a safety-related complaint.
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III. Based on Lee’s Report, PG&E Decides to Terminate Jameson
Winnie reviewed Lee’s report and discussed her findings with the Gas Operations
management team: Nick Stavropoulos, Jesus Soto Jr. (Senior Vice President, Gas
Operations), and Sean Kolassa (Vice President, Investment Planning, Gas Operations).
Based on the detailed nature of Lee’s investigation and her experience with investigations
generally and for PG&E, they accepted her finding of retaliation.
After a series of telephone conversations, Winnie, Stavropoulos, Soto and Kolassa
decided Jameson’s misconduct warranted immediate termination. According to Winnie,
they “found that Jameson’s misconduct as a high-level manager against a subordinate
would have a chilling effect on employees’ freedom to identify and report safety-related
concerns if Jameson were permitted to continue working for PG&E. Particularly in the
Gas Operations Department, it was critical for us to ensure an environment in which
employees are comfortable engaging in a transparent exchange of safety-related
information. Therefore, we decided to terminate Jameson’s employment.”
Jameson sued PG&E for wrongful termination in breach of contract and the
covenant of good faith and fair dealing. PG&E moved for summary judgment on the
grounds that Jameson was an at-will employee subject to termination without cause and,
alternatively, that PG&E had good cause to terminate him. The court granted summary
judgment on the former ground, ruling that Jameson failed to create a triable issue of
material fact regarding the existence of an implied-in-fact contract not to terminate
without good cause. This timely appeal followed.
DISCUSSION
I. Summary Judgment Standards
Summary judgment is proper when there is no triable issue as to any material fact
and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., §
437c, subd. (c).)1 We generally review a ruling granting summary judgment de novo.
(Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798 (Horn).) “First,
the reviewing court identifies the issues framed by the pleadings, because the motion
must be based on the issues as so framed. [Citation.] Second, the court determines . . . if
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the moving party is the defendant, whether the moving party either has negated at least
one element of each of the plaintiff’s causes of action, or has established every single
element of a complete defense to plaintiff's cause or causes of action. [Citations.] Finally,
if the moving party has established a prima facie basis for judgment in its favor, the court
considers whether the opposing party has demonstrated that a triable issue of material
fact exists so as to preclude summary judgment.” (Schrader v. Scott (1992) 8
Cal.App.4th 1679, 1683–1684.) “We accept as true the facts alleged in the evidence of
the party opposing summary judgment and the reasonable inferences that can be drawn
from them. [Citation.] However, to defeat the motion for summary judgment, the plaintiff
must show ‘ “specific facts,” ’ and cannot rely upon the allegations of the pleadings.”
(Horn, supra, at p. 805.)
We affirm the trial court’s decision if it is correct on any ground the parties had an
adequate opportunity to address in the trial court, regardless of the reasons the trial court
gave. (California School of Culinary Arts v. Lujan (2003) 112 Cal.App.4th 16, 22
(Lujan); Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 975.)
II. PG&E Had Good Cause for Terminating Jameson
Jameson’s causes of action are premised on his position that PG&E’s progressive
discipline guidelines and code of conduct, his reliance on those policies, and his prior
tenure with PG&E created an implied contract not to terminate his employment without
just cause. We need not address this underlying premise because, even if true, Jameson
has not shown facts to show he was terminated without just cause sufficient to preclude
summary judgment.
A. The Issue of Good Cause is Reviewable on Appeal
Preliminarily, we address Jameson’s assertion that this court may not affirm the
summary judgment ruling on a ground raised below but not addressed in the trial court’s
ruling. Jameson cites Zak v. State Farm Mut. Liab. Ins. Co. (1965) 232 Cal.App.2d 500,
506 (Zak) to argue our review is restricted to the grounds addressed by the trial court, but
Zak holds only that the appellate court will not affirm a ruling on the basis of factual
issues that were not raised before the trial court. Here, the factual basis for PG&E’s
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position that it had good cause to terminate Jameson was fully addressed in its motion for
summary judgment.
Moreover, Jameson’s view is contrary to the law. “ ‘As a corollary of the de novo
review standard, the appellate court may affirm a summary judgment on any correct legal
theory, as long as the parties had an adequate opportunity to address the theory in the trial
court.’ ” (Lujan, supra, 112 Cal.App.4th at p. 22.) “ ‘Regardless of how the trial court
reached its decision, it falls to us to examine the record de novo and independently
determine whether that decision is correct.’ [Citation.] . . . The sole question properly
before us on review of the summary judgment is whether the judge reached the
right result—i.e., entry of judgment in favor of [PG&E]—whatever path [he or she]
might have taken to get there, and we decide that question independently of the trial
court.” (Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) However, in
accordance with Code of Civil Procedure section 437c, subd. (m)(2) we invited the
parties to submit supplemental briefs on whether Jameson’s termination was supported
by good cause and have considered those arguments as well as the points raised in the
parties’ initial briefs.
B. Jameson Did Not Establish a Triable Issue as to Good Cause
On the merits, Jameson concedes he was fired on the basis of Lee’s report. But he
asserts a jury could reasonably find PG&E’s reliance on it was not reasonable or in good
faith. He contends a jury could decide Lee was biased in favor of her former employer
and that her investigation was inadequate because she failed to interview three of the
witnesses he asked her to speak with and declined to follow up with him after their initial
interview. And he contends that a declaration by Amy Oppenheimer, his expert witness
on the conduct of workplace investigations, reveals numerous instances in which Lee’s
investigation and report fell below the relevant standard of care. “[M]ost importantly,”
he contends, “[t]he entire premise and conclusion in Lee’s report is wrong” because it
was Rice, not Jameson, who decided to transfer Nelson’s work assignments.
These arguments are unpersuasive. The issue is not whether Lee’s conclusions
were correct or whether her investigation could have been better or more comprehensive.
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The question, rather, is whether PG&E’s determination that Jameson retaliated against
Nelson for raising a safety issue was “reached honestly, after an appropriate investigation
and for reasons that are not arbitrary or pretextual[.]” (Cotran v. Rollins Hudig Hall
Intern., Inc. (1998) 17 Cal.4th 93, 107 (Cotran).) “ ‘Three factual determinations are
relevant to the question of employer liability: (1) did the employer act with good faith in
making the decision to terminate; (2) did the decision follow an investigation that was
appropriate under the circumstances; and (3) did the employer have reasonable grounds
for believing the employee had engaged in the misconduct.’ [Citation.] ‘Cotran did not
delineate the earmarks of an appropriate investigation but noted that investigative fairness
contemplates listening to both sides and providing employees a fair opportunity to
present their position and to correct or contradict relevant statements prejudicial to their
case, without the procedural formalities of a trial.’[Citation] [¶] . . . Although the
elements of the Cotran standard are triable to the jury, ‘if the facts are undisputed or
admit of only one conclusion, then summary judgment may be entered.’ ” (Serri v. Santa
Clara University (2014) 226 Cal.App.4th 830, 872–873.)
King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426 is illustrative.
UPS terminated King after an internal investigation concluded he had falsified a driver’s
time card or directed the driver to do so. King sued UPS for breach of an implied
contract to terminate only for good cause.1
In affirming summary judgment, the court of
appeal declined to address the existence of an implied contract superseding King’s at-will
employee status because he failed to raise a triable issue that his discharge was in bad
faith. The court explained: “Good cause, in the context of implied employment contracts,
means ‘fair and honest reasons, regulated by good faith on the part of the employer, that
are not trivial, arbitrary or capricious, unrelated to business needs or goals, or pretextual.’
[Citation.] The question critical to UPS’s liability is not whether plaintiff in fact violated

1 He also asserted he was terminated because of a disability and that the
company’s purported reason for firing him was merely pretextual. Jameson, in contrast,
argues only that PG&E lacked just cause to fire him, not that it fired him for a
discriminatory reason.
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the integrity policy by encouraging a subordinate to falsify his timecard, but whether
UPS, acting in good faith following an appropriate investigation, had reasonable grounds
for believing plaintiff had done so.” (Id. at p. 438.)
So too here. PG&E met its summary judgment burden to show it acted reasonably
and in good faith after an appropriate investigation determined Jameson retaliated against
Nelson. The question, then, is whether Jameson demonstrated a triable issue of fact
existed as to the adequacy of the investigation or PG&E’s good faith in relying on it. He
did not. Jameson claims a jury could find it was unreasonable for PG&E to rely on Lee’s
report because she declined to interview Yancy, Solinsky, and Bennett. But Lee’s
declaration explains she concluded from her discussion with Jameson that Yancy and
Solinsky “only had information about issues they had with Nelson’s work performance or
about the legitimacy of the safety concern that Nelson raised, not about the issue of
whether Jameson retaliated against Nelson for raising that concern. Also, Yancy and
Solinsky did not appear to have any more information beyond that which I had obtained
from the existing employees whom I had already interviewed.” Similarly, she did not
believe Bennet had knowledge about the alleged retaliation. Jameson argues these
individuals could have shed light on his motivation for having Nelson transferred, but
there is no evidence, either within the report or otherwise, to show that Lee circumscribed
her interviews for improper reasons or that the members of the PG&E management team
who decided to terminate Jameson should have found the investigative report was
inadequate for that reason. “It is the employer’s honest belief in the stated reasons for
firing an employee and not the objective truth or falsity of the underlying fact that is at
issue . . . .” (King, supra, 152 Cal.App.4th at p. 436.)
Jameson cites Oppenheimer’s identification of numerous alleged flaws in Lee’s
investigation as evidence that her investigation fell below the relevant professional
standard of care.2 This argument fails for reasons noted in King. Like Jameson, the

2 Those are, in short, that Lee was “unclear and inconsistent about her role as an
attorney/investigator;” had a close relationship with PG&E; did not tell Jameson he was
the subject of a complaint; conducted her interviews by phone; interviewed Jameson
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employee in King argued his employer’s bad faith was evidenced by shortcomings in its
investigation, specifically in that he was not given an adequate opportunity to rebut the
allegation of wrongdoing. Affirming summary judgment, the court explained its
disagreement. “Justice Tobriner reminds us that ‘ “[t]he common law requirement of a
fair procedure does not compel formal proceedings with all the embellishments of a court
trial [citation], nor adherence to a single mode of process. It may be satisfied by any one
of a variety of procedures which afford a fair opportunity for an applicant to present his
position . . . . [T]his court should not attempt to fix a rigid procedure that must invariably
be observed.” ’ [Citation.] [¶] Flexibility is the signature lesson from Cotran. The
Supreme Court is unwilling to compel employers to undertake a precise type of
investigation as long as the process is inherently fair. . . . Because neutral personnel
investigated the facts, eyewitnesses provided statements, and plaintiff was given an
opportunity to explain what happened, we conclude UPS conducted an adequate
investigation as a matter of law.” (King, supra, 152 Cal.App.4th at p. 439–440.)
Here, just as in King, PG&E’s evidence on summary judgment established that it
satisfied the Cotran standard, and an expert’s after-the-fact opinion that Lee’s
investigation was flawed in various respects does not compel a different result. Any
investigation can be criticized, and a plaintiff can always assert that more should have
been done, or done differently. (See, e.g., Silva v. Lucky Stores, Inc. (1998) 65
Cal.App.4th 256, 275.) Again, the “Supreme Court is unwilling to compel employers to
undertake a precise type of investigation as long as the process is inherently fair.” (King,
supra, 152 Cal.App.4th at p. 439.) Jameson was informed of the investigation and
directed early on to speak to Lee. She interviewed 10 witnesses and provided credible

while he was recovering from surgery, and the interview was “too short and not
reasonably thorough;” jumped to a false conclusion that if Jameson had complained about
Nelson to anyone at PG&E he would have complained to his supervisors; failed to
interview “significant witnesses . . . that could exonerate Jameson;” failed to thoroughly
investigate Jameson’s complaints about Nelson’s job performance; failed to preserve her
contemporaneous notes; and did not reopen the investigation for Jameson to rebut her
findings.
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reasons for her decision not to interview three others. She produced a twelve-page report
that detailed the evidence she gathered and her analysis of it. Nothing in Oppenheimer’s
critiques of Lee’s report support a reasonable inference that the process was not
inherently fair or that the PG&E managers who relied on it did so unreasonably or in bad
faith.
Nor does Jameson identify sufficient evidence to support an inference that Lee
was biased. He argues her bias is evident because Lee formerly worked for PG&E and
now “had an ongoing working relationship with the company” through its retention of her
and her law firm. Neither of those relationships supports a reasonable inference that Lee
was predisposed to find Jameson retaliated against Nelson.
3 To the contrary, the only
evidence on that question was Lee’s uncontradicted declaration that she had never before
found that a PG&E manager retaliated against an employee for raising a safety concern.
Finally, Jameson asserts the most significant evidence showing Lee’s investigation
was inadequate is that it was Rice’s decision, not his, to transfer Nelson to remote work
sites. This argument misrepresents Lee’s report, which accurately recounted that
Jameson initiated the decision by repeatedly requesting that Nelson be removed from his
projects and admitted he was the catalyst in effecting Nelson’s reassignment.
In sum, PG&E established on summary judgment that it employed an adequate
procedure to investigate Nelson’s allegation of retaliation and reasonably decided to
terminate Jameson on the basis of that investigation. Jameson failed to present sufficient
evidence to establish a triable issue of fact that PG&E’s decision was biased or
procedurally inadequate. Summary judgment was appropriately granted.

3
Indeed, if either former employment with or current retention by the employer
were sufficient to establish a factual issue as to bias, no termination based on an
investigation by either an in-house or external investigator—in short, no termination
based on a professional investigation—would ever withstand an allegation of bias on
summary judgment. Such an unworkable situation cannot be the law.